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Research On Right To Silence System

Posted on:2004-06-23Degree:MasterType:Thesis
Country:ChinaCandidate:L H ZhuFull Text:PDF
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Right to silence at present has attracted wide concern among circles of criminal procedure law research. This is indicated not only by fierce debate by pros and cons of right to silence among the circle of theoretical research and unprecedented ardor in discussion of whether right to silence should be established or not in present China among circle of criminal justice practice, but also some pioneering experiments carried out by some local judicial authorities. All these have greatly facilitated the development of right to silence as either an idea or a system. However, Can China, a country with its own criminal procedure tradition, really establish its system of right to silence? Will this system be accepted and supported by the people? Will it affect the crackdown of crimes in China? If it is an unavoidable trend to establish right to silence system in China, what kind of right to silence system should be established in China which can not only accord with our national conditions but also reveal its value? …… The author has been thinking about this all along. As a result of thinking, the article attempts to prove it is not incidental but inevitable for right to silence system to be established in many countries ruled by law from its origination. The ideas on which right to silence system is based and the values revealed by it are universally applicable. Although the development of criminal procedure has its own features and the circumstances in China lack the cultural and systematic soil for the growth and development of right to silence, these cannot become the reasons for us to reject the right to silence. On the contrary, many systematic problems exposed in the criminal judicial practices in China are caused by absence of right to silence. Therefore, it is of great urgency to establish right to silence in criminal litigation in China. Concentrating on the ideas above, this article elaborates in the following five perspectives:1. The concept and origination of right to silence. This article observes different definitions of right to silence and the innocence assumption principle closely related to it. It attempts to make the definition clear. Meanwhile, the author believes that only through historical research can the necessity of one system be obtained and an excellent basis to better understand the values of this system be established. 2. The features of right to silence. Since its creation, it has been established in many countries. Right to silence system may have different forms in different countries due to concrete legal environments and cultural traditions. However, as a system, right to silence has some special features that are revealed in the provisions of all the countries. This part analyzes the features of right to silence from the perspectives of contents of right to silence itself and contents of protecting right to silence. 3. The systematic value of right to silence. The reason why right to silence has been established in major developed countries ruled by law and even the criminal judicial guidelines of U.N. lies in the systematic value of it. The most important values of right to silence are: revealing the subjects of modern society, reflecting due process, objective requirements of innocence assumption and a way to realize the economic principle of procedure and improve judicial efficiency.4. The conflicts and balances of interests in right to silence system-exceptions and limitations of right to silence. As any system has its own shortcomings, right to silence system is established on the basis of balancing the shortcomings and values by every country. Through some legislative techniques, it is possible to minimize the negative effects of right to silence system. This part mainly discusses some restrictive and exceptional provisions in U.S. and U.K. on right to silence, which is expected to provide suggestion for the establishment of it in China. 5. Some issues on establishment of right to silence in China. The ultimate goal of this a...
Keywords/Search Tags:Right to Silence, Privilege against self-incrimination, Limited right to silence
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